David Rudenstine
Dr. Herman George & Kate Kaiser Professor of Constitutional
Law

When I answered my hotel telephone, the desk clerk said that my translators
were waiting for me. I went downstairs quickly. After we had introduced
ourselves, I expanded on what I had previously written them - that I wanted
to find whatever I could about Lord Elgin's taking of the Parthenon marbles
during the first decade of the 19th century. Within minutes we set off
for the archives of the Ottoman Empire, walking through Istanbul's narrow,
winding streets, across the historic Hippodrome and past the breathtaking
Blue Mosque, the monumental Hagia Sophia, tantalizing restaurants and innumerable
eye-catching rug stores. Within 30 minutes we arrived at the archival center,
a low-lying, drab, post-World War II rectangular building.

. . .the great museums of
the industrialized West cannot turn a deaf ear to all claims for the important
remains of a heritage merely because such claims threaten established collections.

I had made careful arrangements through an
American lawyer with the director of the archives so that I, as a foreigner,
would be given immediate access to the archives and not have to wait the
customary two days while my application was processed. But as luck would
have it, the director was unexpectedly in Ankara for a few days of meetings
and his assistants knew nothing of my coming. Yet after an hour of conversation,
telephone calls and a review of letters, I and my Turkish Ottoman translators
were permitted access to the main reading room. We settled into some free
desks, located the indexes to the archives and commenced working. This
effort continued on and off till the end of June 1998. Subsequently I visited
the Public Record Office in London, and I consulted with archivists at
Parliament as I searched for additional documents bearing on Lord Elgin's
taking of the world's greatest collection of classical Greek sculptures
and the celebrated dispute between Greece and Britain over whether the
British Museum should return the marbles to Athens. Acrimonious as the
debate has been, when one scrutinizes its historical premises for what
gave rise to them, what is to be found is, to say the least, surprising.

The fabulous marbles, sculpted during the age
of Pericles under the guiding hand of Phidias out of fine white Pentelic
marble quarried 10 miles from Athens and hauled by oxcart to the Acropolis,
remained on the high walls of the Parthenon until the first decade of the
19th century. At that time, a period of severe international disorder because
of the Napoleonic Wars, the marbles were removed and shipped to London
at the behest of Thomas Bruce, seventh Earl of Elgin and eleventh of Kincardine
and the Ambassador Extraordinary and Minister Plenipotentiary of His Britannic
Majesty to the Sublime Porte of Selim III, Sultan of Turkey in Constantinople.

After
having been stored in an underground tunnel for safety during the Second
World War, the Elgin Marbles were reinstalled in The British Museum galleries.

Since then, Elgin's controversial taking has frequently been both criticized
and defended by poets, artists, cultural leaders, politicians
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, diplomats,
lawyers, and academics. Only recently, these marbles have again captured
international attention. A year ago, the European Parliament urged Britain
to return the collection, and at the end of 1999, President Clinton offered
to mediate Greece's demand that Britain return the marbles. A conference
last year at the British Museum, which focused on the improper and subsequently
concealed cleaning - really scraping - of the marbles in the 1930s, became
a forum for swapping charges and countercharges among those supporting
retention or return, with the Greek representatives eventually walking
off in anger.

The battleground over the marbles sweeps broadly
across legal, moral, ethical, and historical considerations. Those defending
the taking and the retention of the marbles make several tenuous claims:
Lord Elgin had impeccable legal title to the marbles because the Ottomans,
who ruled Greece at the time, gave him permission to take them; Britain
deserves the marbles because Elgin's taking of them preserved them from
looters, collectors and air pollution; the marbles are now part of its
patrimony; they are more accessible in London than they would be if they
were in Athens; Greece is not prepared to take adequate care of the marbles;
and returning them would set a bad precedent, resulting in the emptying
of exhibition halls of the world's great museums.

The claims of those favoring return have been
comparably strenuous: The Ottomans lacked moral authority to alienate public
monuments; the removal of the marbles caused irreparable damage to the
structure of the Parthenon; the return of the marbles to Athens will facilitate
scholarly study; Greece is prepared to protect and preserve the marbles;
and the great museums of the industrialized West cannot turn a deaf ear
to all claims for the important remains of a heritage merely because such
claims threaten established collections.

As complicated and wide-ranging as this debate
may be, both sides have taken as a starting point the assumption that the
Ottomans gave Elgin permission to remove the marbles. After so many years
of debate and animosity, it may be hard to imagine that there is anything
new under the sun to say about this highly significant issue. But there
is, and what is new is no small matter. Indeed, as things turn out (and
as somewhat surmised by Christopher Hitchens in his book The Elgin Marbles)
the assumption shared by advocates on both sides of the debate - that the
Ottomans gave Lord Elgin permission to remove the marbles - is no more than
a grand illusion.

The story preferred by the defenders of how
Lord Elgin obtained the Parthenon marbles goes something like this: Lord
Elgin was dedicated to improving aesthetic tastes in England and to saving
the Parthenon marbles from destruction wrought by travelers who wanted
them as trophies for their manors and Ottoman troops who used them for
target practice and mortar. Taking advantage of Ottoman solicitude toward
Britain in the wake of the 1801 British defeat of the French forces in
Egypt, then part of the Ottoman Empire, Lord Elgin asked the highest officials
in Constantinople for permission to remove the marble statuary from the
Parthenon. Because the Ottomans were eager to have Britain return control
of Egypt to them, the Ottomans, who had for decades denied the French,
their ally, these exquisite sculptures, quickly consented to the British
ambassador's request. If Elgin exceeded the authority given him by taking
marbles from the Parthenon walls - the metopes, the friezes and the free-standing
statuary - as opposed to marble statuary on the ground or unearthed through
excavation, Ottoman authorities subsequently approved of and condoned Elgin's
stripping of the marbles. Although it has been unchallenged for the better
part of two centuries, there is little truth to this story. . ..
The
Elgin Marbles are on display at The Brit
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ish Museum:
The British claim that the Ottomans gave Lord Elgin prior permission to
denude the Parthenon relies on an English document printed in the appendix
of an 1816 report of a parliamentary committee convened to evaluate Elgin's
request that the British government purchase the Parthenon marbles from
him. (Parliament went on to vote, 82 to 30, to buy them and give them over
to the British Museum.) The Parliament report presents this document as
an accurate English translation of a July 1801 Ottoman document that, according
to Elgin, authorized the removal of the marbles. Elgin told the committee
that the original Ottoman document was given to Ottoman officials in Athens
in 1801. Yet no researcher has ever located this Ottoman document, and
when I was in Istanbul I searched in vain for it or any copy of it, as
well as for any reference to it in other sorts of documents or a description
of its substantive terms in any related official papers. Although a document
of some sort may have existed, it seems to have vanished into thin air,
despite the fact that the Ottoman archives contain an enormous number of
other documents from the period.

Putting aside for the moment the all-important
question of just what activities this English document might have authorized
Lord Elgin to carry out, there are serious questions about the authenticity
and reliability of this historically prominent piece of paper. The parliamentary
record reveals that it was not Elgin himself but a young clergyman who
worked for him, the Rev. Philip Hunt, who claimed that he had a copy of
the 1801 Ottoman document. Hunt, who appeared as the committee's very last
witness, told the committee that he had an Italian translation of the Ottoman
original in Bedford, about 60 miles north of London. He explained that
he did not have the document with him because, when he left Bedford, he
did not know he was going to be a witness. The record also indicates that
the English document printed in the report was forwarded to the parliamentary
committee by Hunt, and that the committee never saw the Italian translation
that Hunt claimed to possess. Thus, Parliament never assured itself that
the English document sent by Hunt was a faithful translation of the Italian
document. A contemporary British historian, William St. Clair, who recently
published a third edition of his biography of Lord Elgin, claims to possess
Hunt's Italian document and vouches for the accuracy of the English translation.

Nonetheless, the failure of Parliament, which
was running a worldwide empire at the time, to secure Hunt's Italian document,
to obtain a verified copy of the Ottoman document in Athens, or to secure
a statement from Ottoman authorities in Istanbul that Lord Elgin had been
officially allowed to remove the marbles certainly suggests that it was
not all that eager to get to the bottom of this crucial question. In short,
by failing to investigate with due diligence, Parliament protected itself
from gaining more confidence about what actually happened and from obtaining
documents that might support (or disprove) its findings of fact.

In addition to its startling failure to secure
the best evidence it could pertaining to the strength of Lord Elgin's legal
claim to the marbles, Parliament actually misled the public about the evidence
it had concerning the authenticity of the document. The English document
printed on page 69 of the committee's report has at its end the following
words: "(Signed with a signet.) seged abdullah kaimacan."

The plain suggestion inherent in the placement
of this line at the end of the text in the report is clear: that the document
examined by the committee had a signet and was signed by the Acting Grand
Vizier at the time, thus giving it legal force and legitimacy. But the
documen
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t examined by the committee - one purportedly translated from an Italian
document that was supposedly translated from an Ottoman original - did not
have a signet or signature on it at all. Moreover, St. Clair has told me
that the Italian document he possesses has no signet either, nor is it
even signed.

Although possession is
often nine-tenths of the law, this is one dispute in which more than possession
matters.

As much as these considerations undermine the
legitimacy of this highly touted document, it has another flaw, this one
deadly. The English-language document Hunt submitted to Parliament was
not a completely faithful English translation of the Italian document Hunt
said he possessed. The first sentence of the second paragraph of the text
provided to Parliament by Hunt and printed in the committee's report begins
with the following words: "We therefore have written this Letter to you,
and expedited it by Mr. Philip Hunt, an English Gentleman, Secretary of
the aforesaid Ambassador, in order. . .." But St. Clair has written that the
Italian document he has actually indicates: "We therefore have written
this letter to you and expedited it by N.N., in order. . .."

St. Clair does not perceive any significance
in this discrepancy. Perhaps he is correct. But that seems unlikely. The
difference is so peculiar that it was certainly not accidental. No one
would mistakenly substitute "Mr. Philip Hunt, an English Gentleman, Secretary
of the aforesaid Ambassador," for the letters "N.N." Moreover, the context
in which Hunt created the discrepancy suggests his reasons for doing so:
By the time Hunt appeared before the committee, it had questioned Elgin
at some length about whether he had authority to remove the marbles from
the walls of the Parthenon. While Elgin consistently insisted he did have
such authority, he also admitted that he had no papers to support his claim.
Thus, when Hunt testified, he knew that the committee was seriously concerned
about the lack of documentation authorizing Elgin to take the marbles,
and it seems likely that Hunt became a witness solely to provide the documentation
the committee sought. When Hunt forwarded the English document to the committee,
it would appear that he substituted "Mr. Philip Hunt, an English Gentleman,
Secretary of the aforesaid Ambassador" for "N.N." in the hope that the
alternative language would shore up the authenticity of his "evidence"
and the circumstances as to how it was that he alone came to possess the
critical document. In short, through the insertion of his name, Hunt put
himself in a position in which he could simultaneously vouch for the authenticity
of the document and explain why he alone had a copy of it 15 years after
he surrendered the original to Ottoman officials in Athens.

Although these considerations are sufficient
challenge to the English document as a reliable basis for any legal claim
by Britain, there is another factor that casts an even darker shadow over
the proceedings. During his testimony before the committee on February
29, Elgin was questioned about whether the Ottomans gave him permission
to remove the marbles. Elgin stated that the Ottomans gave him written
permissions more than once, but that he had "retained none of them." At
two other, separate moments during the examination, Elgin denied having
a copy of any document granting him permission. Hunt appeared before the
committee on March 13. The committee's second question to Hunt was, "Did
you ever see any of the written permissions which were granted to [Lord
Elgin] for removing the Marbles from the Temple of Minerva?" Hunt answered,
"Yes." He then stated that the original document had been sent to Athens
but that he had an Italian translation of the original. During his testimony,
Hunt did not explain how it was that he re
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tained the Italian document for
15 years. Nor did Hunt state how it was that Elgin had known nothing about
it when he had testified nearly two weeks beforehand.

It is of course possible that Hunt possessed
an accurate Italian translation of an original Ottoman document. But look
at the chronology: Elgin appears, denying ever having a copy - in any language - of
a relevant document. It is plain from his testimony that he knows of none
possessed by others; by the time he completes his testimony, however, he
sees that the committee is eager to view some sort of written authorization
for the removal of the marbles from the Parthenon walls. In a fortnight,
Hunt appears and claims to have an accurate translation of the original
order. Is this chain of events enough to make anyone a tad suspicious?
There is no suggestion in the testimony as to how it came to pass that
Hunt became a witness before the committee.

Let's assume the authenticity of the English
document printed in the committee's report, for a moment, just to take
another approach to the issue. Did this document authorize Elgin to remove
marble statuary from the Parthenon walls? The British claim that it did
rests on a handful of words. They provide that no one should "hinder them
[Elgin's agents] from taking away any pieces of stone with inscriptions
or figures." But by themselves these few words fail to authorize removal
of marble statuary from the Parthenon edifice. Moreover, when they are
read in the context of the entire document, the assertion that they permitted
Lord Elgin to remove metopes, friezes, and statues from the Parthenon walls
is specious. The document describes the activities that Lord Elgin wanted
his workers to conduct, and those were limited to measuring, drawing, painting,
excavating, and making molds. There is not one word in the document suggesting,
intimating, or implying that Elgin sought permission to remove marbles
from the walls. In addition, the document itself emphasizes to the local
Ottoman officials in Athens that they should honor the permission given
to Lord Elgin, "particularly as there is no harm in the said figures and
edifices being thus viewed, contemplated, and designed." In short, even
by its own terms, the 1801 document fails to support the claim that Elgin
had good title to the marbles; it actually negates the idea that the Ottomans
gave Elgin permission to remove them.

Even Lord Elgin did not interpret any July 1801 exchange with the authorities
as granting him permission to remove marbles from the Parthenon walls.
On July 10, 1801, just a few days after he received the Ottoman directive,
Lord Elgin wrote to Lusieri: "Besides, you have now the permission to dig,
and there a great field is opened for medals, and for the remains both
of sculpture and architecture." What Elgin considered "extraordinary" about
the permission he had secured was that his artists now had permission to
"dig," or to excavate, which meant that they might discover buried marble
sculptures. If Elgin believed that his men had been given a green light
to denude the Parthenon of famous antiquities, he would have celebrated
that power, not the prospect of digging for buried unknowns.

Although this evidence alone is more than sufficient
to overcome the claim that the 1801 document gave Elgin prior permission,
there is yet more. In July 1801, Elgin sent the young minister Philip Hunt
to Athens. When Hunt arrived, he promptly visited the Voivode, the local
Ottoman official. Using threats and bribes, he persuaded the Voivode to
permit Elgin's artists to enter the Acropolis for the limited purposes
of drawing, measuring, painting and molding. A few days later Hunt met
the Voivode again and, struck by the Voivode's favorable attitude toward
Britain now that Britain controlled Egypt and the degree to which the Voivode
appeared intimidated by the power of t
cdd
he British ambassador (Lord Elgin),
Hunt then requested permission to remove a marble sculpture from the Parthenon
walls. The Voivode agreed. In the early morning of July 31, a ship's carpenter,
five crew members and twenty Athenian laborers mounted the walls of the
Parthenon and removed the first metope. The next day they lowered a second.
During the weeks following, Lusieri and his men lowered many other marble
sculptures.

Lord Elgin was in Constantinople at the time
and had no idea that Hunt had secured permission from the Voivode in Athens
to remove marbles from the Parthenon walls; nor did he know that metopes
were lowered from the Parthenon in his name on July 31 or August 1. In
fact, Lord Elgin did not learn of this development until mid-August, when
letters from Hunt and Lusieri arrived in Constantinople. Elgin's glee in
response to the news is captured in a letter he wrote to Lusieri dated
October 8, 1801. He told Lusieri of his "infinite pleasure" when he learned
of the marbles and confessed to Lusieri that taking marbles from the walls
"now seems to promise success beyond our most ardent hopes."

As is evident, Elgin did not request or receive
permission to remove the marbles, and seems to have had no prior intention
of denuding the Parthenon. The deed was initiated by Hunt - who 15 years
later would produce for Parliament the document on which so much has since
hinged - and made possible by intimidated and bribed Ottoman officials in
Athens, who in any event lacked authority to permit the desecration that
ensued. . .. [And] the British ambassador's agent at the time gave bribes to
Ottoman officials to facilitate the shipment of the marbles out of Greece.
Such bribes would seem to poison any claim of legitimacy that might otherwise
be imputed to permission to ship.

Although possession is often nine-tenths of
the law, this is one dispute in which more than possession matters. Because
the longstanding Greek claim for the return of the marbles has broad international
support, the European Parliament's being only the latest and most prominent,
Britain has never defended its possession of the marbles by claiming that
it is keeping them merely because it prizes them. Instead, Britain has
consistently tried to strengthen its political position by asserting that
it has no moral or legal obligation to Greece because the Ottomans gave
Elgin permission to make off with Phidias' handiwork. . ..

Of course, the conventional wisdom is that
Britain will never return the marbles. But few imagined that Britain would
surrender India to an old man clothed in a sheet, either. The odds, from
my point of view, are that Britain will eventually repatriate the marbles
to Greece, and when it does so, it will be acknowledging, whether it wishes
to or not, that what was acceptable during the age of empire must give
way to the demands of an ever-shrinking world that aspires to the rule
of law.

This article is reprinted with permission from the May 29, 2000
issue of The Nation, where it appeared in a slightly longer version.
http://www.thenation.com
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